After 9/11, President George W. Bush authorized the creation of military tribunals
to try individuals who provided assistance for the terrorist attacks in New York
City and Washington, D.C. In an op-ed piece with Andrew G. McBride, former Attorney
General William P. Barr referred to the Nazi saboteur case of Ex parte Quirin
(1942) as the "most apt precedent." Vice President Dick Cheney argued
that terrorists, because they are not lawful combatants, "don't deserve to
be treated as a prisoner of war." He spoke favorably of the treatment of
the German saboteurs, who had been "executed in relatively rapid order."

There is a world of difference between the military tribunal created in 1942
and the tribunals authorized by President Bush. After the capture of eight Germans
who arrived on two submarines in June 1942, President Franklin D. Roosevelt
issued a proclamation to create a military tribunal to try the men. Roosevelt
therefore targeted eight specific individuals.

The Bush military order covers a much larger universe: any individual who is"not a United States citizen" (about 18 million inside U.S. borders) who gave assistance to the September 11 terrorists. The president need only determine that there is"reason to believe" the person is or was a member of al Qaeda,"has engaged in, aided or abetted, or conspired to commit, acts of international terrorism," caused injury to U.S. national security, foreign policy, or the economy, or has"knowingly harbored" one of more individuals described in the Bush order. FDR looked backward at a handful of known saboteurs who had confessed. Bush looked prospectively to 18 million noncitizens and resident aliens who had yet to be apprehended or charged.

Under the Bush order, the threat of prosecution hangs over a huge population.
The extent to which this group is at risk depends on presidential "determinations"
and definitions of such phrases as "international terrorism" and "knowingly
harbor." "Aiding or abetting" could involve innocently contributing
money to a group that seemed to be a legitimate charitable or humanitarian organization,
which later the administration concludes operates as a front by providing assistance
to al Qaeda or other terrorist bodies.

Cheney's distinction between unlawful combatants and prisoners of war relies
on Ex parte Quirin. The Supreme Court distinguished between "lawful
combatants" (uniformed soldiers) and "unlawful combatants" (enemies
who enter the country in civilian dress). The former, when captured, are detained
as prisoners of war. The latter are subject to trial and punishment by military
tribunals. The Court made it clear that a U.S. citizen who associates himself
with the military arm of an enemy government and enters the United States for
the purpose of committing hostile acts is an enemy belligerent subject to military
tribunals.

This judicial decision has little to do with the Bush military order, which
specifically exempts U.S. citizens from the jurisdiction of military tribunals.
What of Bush's decision to designate Yasser Esam Hamdi and Jose Padilla as an
"enemy combatant"? Is that covered by the Nazi saboteur case? There
is little relationship. According to the Bush administration, whoever fits the
category of enemy combatant is held but not charged, is denied the right to
an attorney, and (according to the Justice Department) federal judges have no
right to interfere with executive judgments.

Compare that to the eight German saboteurs, who were charged by the government,
granted counsel, and tried by a military tribunal. They even filed a petition
of habeas corpus in federal district court, eventually arguing their case before
the Supreme Court over a two-day period, totaling nine hours of oral argument.
In sharp contrast, Hamdi and Padilla are held in a naval brig, with no charges
brought against them, no access to counsel, and no prospect of a trial, either
civil or military.

Ex parte Quirin is far from an attractive precedent. The Justices were
poorly prepared to hear the case. The briefs are dated the same day that oral
argument began. There was only a cursory district court decision, issued the
evening before, and no action yet by the D.C. Circuit. The Court handed down
a short per curiam on July 31, but without any legal reasoning. Three months
later the Court released a full opinion, but by that time six of the eight Germans
had been electrocuted. The Court could hardly cast doubt on the legality or
propriety of their executions, much less grant relief.

The conduct of the trial in 1942 so offended Secretary of War Henry L. Stimson
that he intervened forcefully three years later, when Roosevelt established
another tribunal to try two saboteurs who arrived by submarine from Germany.
Unlike the military order of 1942, Roosevelt did not name the members of the
tribunal or appoint the counsel for the prosecution and defense. Instead, he
empowered the commanding generals, under the supervision of the secretary of
war, to appoint the tribunal. Moreover, the trial record did not go to Roosevelt,
as it did in 1942. The review was processed by professionals within the judge
advocate general's office.

The 1942 process was badly crafted. Roosevelt created the tribunal, picked
generals (subordinate to him) to serve on the tribunal, appointed the prosecutors
and defense counsel (all subordinate to him), and when the tribunal completed
its work, the trial record went to Roosevelt for final review. Stimson thought
it made no sense for Attorney General Francis Biddle and Judge Advocate General
Myron Cramer to serve as prosecutors. Why should an attorney general spend a
month prosecuting eight saboteurs? Cramer should not have been co-prosecutor.
His function was to perform a reviewing role to assure fairness.

For the two saboteurs who arrived in late 1944, Stimson succeeded in removing
Biddle and Cramer as prosecutors. Trained military professionals handled the
prosecution in early 1945. Stimson also saw that the trial took place not in
Washington, D.C., with the circus atmosphere of 1942, but at Governors Island,
New York City. Justice Felix Frankfurter, a member of the 1942 Court, later
said that "the Quirin experience was not a happy precedent."

More Comments:

mark safranski -
10/10/2003

A lot of Supreme Court decisions may be poorly argued ( Roe v. Wade) or well-argued but politically disastrous and morally wrong( Dred Scott). It doesn't really matter because until they are overturned they remain operative and binding on lower courts.

FDR could also, at any time, have issued new executive orders regarding saboteurs so Quirin merely recognized the extent of the President's authority in wartime as commander-in-chief to deal with enemy combatants. It revised Ex Parte Milligan which was decided in the far murkier circumstances of a civil, not foreign, war.

Quirin was heard not only in a war atmosphere but during an actual war and the defendents, who had no complaint regarding due process, were swiftly executed and rightly so. In contrast, Mr. Hamdi who was captured fighting on a foreign battlefield with the enemy, has been treated with kid gloves. If anything Bush's executive order regarding war criminals fighting out of uniform is far, far milder than what the United States could apply under Quirin or mete out under the Geneva Convention.

In fact, if Bush wished to strictly apply those standards, most of the captives at Guantanamo would long-since be dead at the hands of a firing squad. Not all, but most.